dismissed EB-3 Case: Home Care

MATTER OF T-C-P- INC. 
Non-Precedent Decision of the 
Administrative Appeals Office 
DATE: JAN. 8. 2018 
APPEAL OF NEBRASKA SERVICE CENTER DECISION 
PETITION: FORM I-140. IMMIGRANT PETITION FOR ALIEN WORKER 
The Petitioner, a residential home care facility, seeks to employ the Beneficiary as a caregiver. It 
requests classification of the Beneficiary as an ''other worker" under the third preference immigrant 
category. See Immigration and Nationality Act (the Act) section 203(b)(3)(A)(iii), 8 U.S.C. 
§ 1153(b)(3)(A)(iii). This employment-based immigrant classification allows a U.S. employer to 
sponsor for lawful permanent resident status a foreign national who is capable of performing 
unskilled labor that requires less than two years of training or experience and is not of a temporary or 
seasonal nature. 
The Director of the Nebraska Service Center denied the petition on the ground that the evidence of 
record did not establish that the Petitioner had the continuing ability to pay the proffered wage from 
the priority date onward. 
On appeal, the Petitioner asserts that its net mcome and bank account assets are sufficient to 
establish its ability to pay the proffered wage. 
Upon de novo review, we will dismiss the appeal in accord with the Director's finding on the 
Petitioner's ability to pay, and on the additional ground that the Beneficiary does not meet the 
minimum educational requirement of the labor certification. 
I. LAW 
Employment-based immigration generally follows a three-step process. First, an employer obtains 
an approved labor certification (ETA Form 9089, Application for Permanent Employment 
Certification) from the U.S. Department of Labor (DOL). 1 See section 212(a)(5)(A)(i) of the Act. 
8 U.S.C. § 1182(a)(5)(A)(i). By approving the labor certification, DOL certifies that there are 
insutlicient U.S. workers who are able, willing, qualified, and available for the offered position and 
that employing a foreign national in the position will not adversely affect the wages and working 
conditions of U.S. workers similarly employed. See section 212(a)(5)(A)(i)(I)-(Il) of the 
1 
The date the labor certification is filed is called the ·'priority date." See 8 C.F.R. § 204.5(d). The Petitioner must 
establish that all eligibility requirements for the petition have been satisfied from the priority date onward. 
Matter ofT-C-P-lnc. 
Act. Second, the employer files an immigrant visa petition with U.S. Citizenship and Immigration 
Services (USCIS). See section 204 of the Act, 8 U .S.C. § 1154. Third, if USC IS approves the 
petition, the foreign national may apply for an immigrant visa abroad or, if eligible, adjustment of 
status in the United States. See section 245 of the Act, 8 U.S.C. § 1255. 
II. ANALYSIS 
At issue in this case is whether the Petitioner has established its continuing ability to pay the 
proffered wage from the priority date onward, and whether the Beneficiary meets the minimum 
educational requirement of the labor certification. 
A. Petitioner's Ability to Pay the Proffered Wage 
A petitioner must establish that it has the ability to pay the proffered wage, as stated on the labor 
certification, from the priority date until the beneficiary obtains lawful permanent residence. See 
8 C.F.R. § 204.5(g)(2). As evidence of this ability the Petitioner must submit copies of annual 
reports, federal tax returns, or audited financial statements. !d. The regulation also provides that "in 
appropriate cases" additional evidence, such as bank account records, may be submitted by the 
Petitioner or requested by USCIS. 
The Petitioner's Form 1-140, Immigrant Petition for Alien Worker. was accompanied by labor 
certification with a priority date of May 6, 2016. Section G of the labor certification states that the 
offered wage for the caregiver position is $19,136 per year. 
In determining a petitioner's ability to pay the proffered wage, USCIS first examines whether the 
beneficiary was employed and paid by the petitioner during the period following the priority date. If 
the petitioner establishes by documentary evidence that it employed the beneficiary at a salary equal 
to or greater than the proffered wage, the evidence is considered proof of the petitioner's ability to 
pay the proffered wage. 
In this case, there is no evidence that the Beneficiary has been employed by the Petitioner. 
Accordingly, the Petitioner cannot establish its ability to pay the proffered wage based on wages 
actually paid to the Beneficiary. 
If a petitioner does not establish that it has paid the beneficiary an amount at least equal to the 
proffered wage from the priority date onward, users will examine the net income and net current 
assets figures entered on the petitioner's federal income tax retum(s). If either of these figures 
equals or exceeds the proffered wage or the difference between the proffered wage and the amount 
paid to the beneficiary in a given year, the petitioner would be considered able to pay the proffered 
wage during that year. 2 
'Federal courts have upheld our method of determining a petitioner's ability to pay a proffered wage. See. e.g, River St. 
Donuts. LLC v. Napolitano, 558 F.3d Ill, 118 (I st Cir. 2009); Tongatapu Woodcrafi Haw., Ltd. v. Feldman, 736 F.2d 
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Matter o(T-C-P- Inc. 
The record includes copies of the Petitioner's 2016 federal income tax return, filed on Form 1120, 
U.S. Income Tax Return for an S Corporation. The figure for net income (or Joss) appears on line 21 
of page 1, while net current assets (or liabilities) are the difference between the Petitioner's current 
assets, entered on lines 1-6 of Schedule L, and its current liabilities, entered on lines 16-18 of 
Schedule L. As shown in the tax return, the Petitioner had net income was $13,518 and net current 
assets of $2,866 in 2016. Since both of these figures were below the pro tiered wage of $19,136, the 
Petitioner has not established its ability to pay the proffered wage from the priority date onward 
based on either its net income or its net current assets in 2016. 
On appeal the Petitioner asserts that its bank account assets in 2016 were sufficient to cover the 
$5,618 shortfall between the proffered wage and the Petitioner's net income in 2016, and should 
have been considered by the Director. The record includes copies of the monthly statements of the 
Petitioner's account with in 2016, which recorded end-of-the-month balances 
ranging from a high of $49,104.46 on January 31, 2016, to a low of $2,184.32 on December 31. 
2016. The Petitioner also submitted copies of its monthly bank statements for the first half of 2017, 
which recorded end-of-the-month balances ranging between $6,598.12 and $13,796.22 during that 
six-month period. 
As stated in the Director's decision, however, bank account statements do not show the Petitioner's 
sustainable ability to pay the proffered wage and there is no evidence that the bank account funds 
represented an additional financial resource for the Petitioner that was not reflected on its tax return. 
such as cash on Schedule L. We note that the last monthly bank statement in 20 16 recorded a 
balance of $2, 184.32, which correlates closely with the year-end cash balance of $2,866 recorded on 
the Petitioner's 2016 federal income tax return. Even if the bank account tunds were an additional 
financial resource that could have been utilized to pay down the difference between the proffered wage 
and net income in 2016 - which was $5,618 - the closing bank account balance in December 2016 -
$2,184.32 -would have been insufficient to cover that deficit. 
USCIS may also consider the totality of the Petitioner's circumstances, including the overall 
magnitude of its business activities, in determining the Petitioner's ability to pay the protiered wage. 
See Matter of Sonegawa, 12 I&N Dec. 612. USCIS may, at its discretion, consider evidence 
relevant to the petitioner's financial ability that falls outside of its net income and net current assets. 
We may consider such factors as the number of years the petitioner has been doing business, the 
established historical growth of the petitioner's business, the petitioner's reputation within its 
industry, the overall number of employees, whether the beneficiary is replacing a former employee 
or an outsourced service, the amount of compensation paid to officers, the occurrence of any 
uncharacteristic business expenditures or losses, and any other evidence that users deems relevant 
to the petitioner's ability to pay the proffered wage. 
1305, 1309 (9th Cir. 1984)~ Estrada-Hernandez v. Holder,-- F. Supp. 3d--, 2015 WL 3634497, *5 (S.D. Cal. 2015); Ri=vi 
v. Dep't o.lHomeland Sec., 37 F. Supp. 3d 870, 883-84 (S.D. Tex. 2014), a[('d, --Fed. Appx. --,2015 WL 5711445, *I 
(5th Cir. Sept. 30, 20 15). 
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Matter ofT-C-P- Inc. 
In this case, the Petitioner states that it began operations in 2008 and had tive employees at the time 
the Form 1-140 petition was filed in 2016. The record includes a copy of the Petitioner's federal 
income tax return for 2015, as well as the 2016 return previously discussed. These two returns 
recorded gross receipts of $296,512 in 2015 and $260,462 in 2016. The 2015 tax return recorded net 
income of just $1 ,680 and no net current assets. The only other evidence of the Beneficiary's 
financial condition are copies of its monthly bank account statements for 2015, 2016, and the first 
half of 2017. As discussed above, there is no evidence in the record that the bank account assets 
represent additional assets not reflected in the Petitioner's federal income tax returns. Thus, the 
financial documentation in the record does not establish a historical pattern of growth for the 
Petitioner. No other evidence has been submitted relating to the Petitioner's financial condition, 
industry reputation, or any other factors influencing its ability to pay the proffered wage. 
Considering the totality of its circumstances, therefore, the Petitioner has not established its ability to 
pay the proffered wage of$19,132 per year from the priority date of May 6, 2016, up to the present. 
B. Beneficiary's Qualifications under the Terms of the Labor Certification 
A beneficiary must meet all of the education, training, experience, and other requirements of the 
labor certification as of the petition's priority date. See Matter (~(Wing's Tea House, 16 I&N Dec. 
158, 159 (Acting Reg'l Comm'r 1977). 
In this case, the labor certification specifies in section H (boxes 4 and 9) that the mmtmum 
educational requirement for the job of caregiver is a high school diploma and that a foreign 
educational equivalent is not acceptable. The record includes a copy of the Beneficiary's diploma 
which shows that she graduated from a secondary school in Republic of the Philippines , on 
March 28, 1978. Since the Beneficiary did not graduate from a U.S. high school and the labor 
certification does not allow for a foreign educational equivalent, the Beneficiary does not meet the 
minimum educational requirement of the labor certification. For this additional reason the petition 
may not be approved. 
III. CONCLUSION 
The Petitioner has not established its continuing ability to pay the proffered wage from the priority date 
onward. In addition, the Beneficiary does not meet the minimum educational requirement of the labor 
certification. 
ORDER: The appeal is dismissed. 
Cite as MatterofT-C-P- Inc., ID# 931349 (AAO Jan. 8. 2018) 
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